Dowling v. Comerford

Citations

• 99 Cal. 204
• 33 P. 853
• 1893 Cal. LEXIS 638

Syllabus

<p>Summons—Amendment of Summons and Complaint—Reference to Complaint —Ambiguity.—Where an amended.complaint is filed before the defendants are brought into court, and an amended summons is issued which refers to the complaint on file, and not in terms to the amended complaint, the amended' • summons is not misleading, nor is such reference uncertain or ambiguous. The. amended complaint entirely takes the place of the former one, and becomes the complaint.</p> <p>Id. — Construction of Code.—Section 432 of the Code of Civil Procedure, requiring an amended complaint to be served on the defendants affected thereby,' has reference to amendments made after the parties have been brought into court, and does not require a mode of service of summons differing from other cases.</p> <p>Id.—Order Allowing Amendment—Appeal from Judgment—Presumption. — Where an appeal is taken on the judgment roll alone, an order allowing an amendment to the complaint or summons forms no part of the record, and its existence will be presumed in support of the judgment if it recites due service of summons and shows nothing inconsistent with the fact that such order was duly made.</p>